A little niche in the vast expanse of the internet for my writing - mostly poems here, but maybe short stories and essays too.
Sonnets emerge occasionally. Comments welcome.

Sunday, 28 May 2017

Dying For The Right To Say It: What do we talk about when we talk about free speech?

(This post was originally published as an article early in 2016 on another website, now defunct.)

There is a
story of a Czechoslovakian dissident who, as Communism began to collapse at the
end of the 1980s, was asked what he was most looking forward to about living in
a free society. He replied that he was looking forward to being able to sit
next to someone on a park bench and say “I don’t think much of this
government”.

Free speech
has been one of the big cultural flashpoints of the last few years, both here
and in the US. What it means; who is entitled to it and under which
circumstances; how it should be weighed with other considerations; whether it
is always a trump card. All these questions have been widely discussed.

I should lay
my own cards on the table and say that I take a maximalist view, i.e. I think
that we should have a very strong presumption in favour of the expression of
ideas, and a very strong presumption against suppressing, preventing or
threatening it.

Free speech,
like the right to a fair trial and the presumption of innocence, is a
procedural virtue, which is why fanatics and revolutionaries hate it. In
practical terms this means, inter alia, that speakers invited to venues should
be able to speak without interruption, harassment or intimidation; that
protests against particular speakers – while themselves a form of free
expression requiring protection – should not be allowed to become physically
threatening. It also means that those who provide spaces for speech and debate should
be willing to stand by, and stand up for, free expression of ideas.

There is a
difficulty in the debate, and it is this: almost no-one actually believes that
there should be no moral or legal limits on what people say. I doubt you would
find many takers for a conception of free speech that permitted me to hurl
obscenities at small children in the street whenever the fancy took me, or to
play loud dance music outside a funeral.

This
ambiguity provides an opportunity for unscrupulous sophists who wish to shut
down discussion of ideas. Free speech is an illusion, they say, a chimaera.
There is no such thing. Ergo, complaints about infringements of it are
self-serving and incoherent. We heard an iteration of this supposed argument
when an Oxford college bowed to the demands of student protesters and cancelled
a debate on abortion. One writer defended the decision by asking whether those
who wanted the abortion debate to go ahead would still stand up for free speech
if a speaker was calling for the death of all gay people.

But the
ambiguity is less important than some people think. Of course we have laws
about harassment, defamation and incitement, and it is not always easy to
define these things. Nevertheless, the existence of grey does not refute the
existence of black and white. It is unsustainable to argue that any imprecision
in the boundary of a concept renders that concept meaningless (this mistake in
reasoning even has its own name: the continuum fallacy). There are plainly such
things as tall men, even though no-one can pinpoint with any certainty the
precise point at which a man can be said to be tall. It is not always easy to
say when speech crosses the boundary into incitement, defamation or harassment,
but that does not mean that we must take seriously all claims that speech is
damaging.

Defenders of
free speech are arguing not only for free speech as an abstraction, but a wider
culture of honest debate, factual argument, respectful disagreement, and
civilised co-existence with people who see the world very differently from us.
Complaints about attacks on free speech can be seen as proxies for concerns
about the maintenance of this culture, particularly in the context of the
university.

So in a
sense, free speech isn’t one thing. It’s many things. It’s a whole network of
overlapping norms about the exchange of ideas. One thing that people commonly
mean when they say “free speech” is “if I’m invited to give a talk somewhere I
should be allowed to do so without intimidation, interruption or threat, and
people who want to come and listen to me should be able to do so”.

Free speech
means something different in the context of a university debate than in the
context of an article in a scientific journal, and something different again on
the editorial page of a newspaper. At the heart of all of those norms, however,
is the notion that debate about ideas should not be restricted and that people
should not feel inhibited from discussing their views. We should not be
constantly glancing over our shoulder before we dare to venture a dissenting
view. Hence the enemies of free speech include not just those who pass and
enforce restrictive laws, but also those who contribute to our culture of
censoriousness, by putting pressure on others to cancel talks, delete articles,
and refuse jobs to holders of controversial views. I might also include in this
category those who make frequent use of words like “racist”, “bigot” and
“homophobe”. These are serious accusations to make against people and can
contribute to an atmosphere of intimidation and self-silencing.

US statesman
Adlai Stevenson once defined a free society as “a society where it is safe to
be unpopular.” This seems to me to be a very profound point. Free expression is
not simply about the absence of formal legal restrictions on what can be
published or said without fear of state punishment. An instalment of the onlinecomic strip xkcd once mocked people who complain about their free speech being
undermined because they are denied a venue, shouted down, boycotted or removed
from a TV programme, or because they faced “consequences” of their speech. The
cartoon claimed that free speech meant simply that the government couldn’t
arrest you for what you said. Nothing more.

But a
moment’s critical thought reveals that this is a highly sinister
interpretation. Being sacked from your job or having people refuse to do
business with you because of your opinions may not be a direct legal attack on
your free speech, but it is plainly a form of suppression of thought and
opinion, a kind of poison to an open and liberal society. It may well be no
business of the criminal law if people are abused, mocked or ridiculed for
their opinions, or denied any platform on which to express themselves. The
question must be asked, however, is it healthy for a country which aspires to
be diverse and pluralistic?

JS Mill, one
of the founding fathers of modern liberalism, understood the force of this
question, stressing in his On Liberty that threats to individual liberty came
from the “moral coercion of public opinion” as well as “physical force in the
form of legal penalties”. In US and Canadian law we find the legal principle of
“chilling effect”, which refers to people being discouraged from the exercise
of their legal rights by the threat of legal sanction; however, it seems to me
that it works equally well as a general warning of the dangers of allowing
opinion to be suppressed by extra-legal means.

Some time
ago the controversialist Katie Hopkins was invited to speak at Brunel
University. When she stood up to speak, almost the entire audience got up and
left the room or turned their backs. Now this was not an infringement of her
free speech – but nor was it a sign that those students were particularly
interested in the maintenance of a healthy culture of debate and discussion on their
campus.

At this
point in the argument, I once again seem to hear the voice of our sophist
friend, the clever cynic who sees through everything and so sees nothing at
all. “Aha”, he says. “So you’re saying that we shouldn’t exercise social
sanctions against any opinions at all? Surely some good has been achieved in
the past by using the force of public opinion to drive completely unacceptable
opinions from the public square?”

I readily
concede that there is some truth in this objection, and that the retreat of—for
example—everyday racial bigotry is a good thing in a civilised society and has
been at least partly achieved through social pressure. But all this proves is
that real life is complicated, and that even the most important political
principles have grey areas around the edges; it does not mean that the grey
areas overthrow the entire principle.

The
importance of an open society is such that we must be very careful about
terming opinions unacceptable and dangerous. It cannot simply depend on how people
feel about a given view, or its supposed “offensiveness”; these are uselessly
subjective. The impetus must always be on the defender of ostracism and social
pressure to justify a particular act of social coercion with concrete evidence.

I am not unsympathetic
to the view that free speech should be used with consideration and care. If you
asked me whether there was a general moral obligation to avoid giving
gratuitous offence to people, I would say yes, of course. But if you ask me
whether the law should enforce this obligation, I would say no, absolutely not.
The best laws are the clearest laws. Quantifying offence and hurt feelings in
any legally useful way is essentially impossible. This is why it is so
gratifying to see rulings like that given by Lord Justice Sedley in
Redmond-Bate v DPP (1999):

“Free speech
includes not only the inoffensive but the irritating, the contentious, the
eccentric, the heretical, the unwelcome and the provocative provided it does
not tend to provoke violence. Freedom only to speak inoffensively is not worth
having.”

Resounding
as LJ Sedley’s words are, the last clause of the first sentence—excepting
incitement to violence from the protection of the law—provides a useful
rhetorical weapon for those opposed to free expression. It has become
increasingly common for people to argue that some words and ideas constitute a
kind of violence, and so should be regulated and prevented in the same way as
violence. In late 2015, for example, many students at Cardiff University petitioned
for Germaine Greer to be banned from giving a talk on the grounds that her
scepticism about whether transgender women were really women “erased” and
“invalidated” the lives of transgender people.

It is only
possible for moderns to conflate speech and violence because of a peculiar view
common among Western intellectuals. This notion marches under various different
banners—critical theory, post-modernism, post-structuralism—but in summary it
is this: ideas, social customs and cultural artefacts should be understood
primarily in terms of the power relations supposedly embedded in them, rather
than as claims to reflect objective truth or reality. So while a defender of
free speech might think he is standing up for a universal principle, his
opponent is convinced that he is simply seeking to justify and perpetuate the
unequal power distribution that has enabled him as a straight white male to
live a life of privilege.

This is not
the place for a long explanation of the wrong-headedness of this view, but its
prevalence must be borne in mind when trying to understand the intractability
of the free speech debate.

Although
this is a kernel of truth in the insight that words can be hurtful, the
conflation of robust disagreement with actual violence is very dangerous,
because the distinction between violence and words is absolutely crucial to
civilised life. The whole of civilisation is, in a sense, a struggle to contain
and manage the inevitable conflicts that will occur in any group of humans, to
defuse tensions and disagreements through compromise and co-operation, to
develop peaceful ways of living together, to discover truth through experiment
and discussion not assertion and physical compulsion. If this distinction is
based on a lie, if words and ideas are simply another form of violence, and
argument the mere assertion of power, there is nothing left but force and will,
and that way madness lies.